United States Court of Appeals 

For the First Circuit 

No. 16-1008 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

MICHAEL P. O'DONNELL, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Douglas P. Woodlock, U.S. District Judge] 

Before 

Torruella and Barron, Circuit Judges, 

and Lisi,* District Judge. 

 James L. Sultan, with whom Charles W. Rankin and Rankin & 

Sultan were on brief, for appellant. 

 Mark J. Balthazard, Assistant United States Attorney, with 

whom Carmen M. Ortiz, United States Attorney, was on brief, for 

appellee. 

October 19, 2016 

 * Of the District of Rhode Island, sitting by designation. 
- 2 - 

BARRON, Circuit Judge. Michael O'Donnell appeals from 

his conviction on one count under 18 U.S.C. § 1344, the Bank Fraud 

Act. We affirm. 

I. 

O'Donnell was indicted under the Bank Fraud Act (the 

Act) on June 15, 2015. The Act provides:

Whoever knowingly executes, or attempts to 

execute, a scheme or artifice-- 

(1) to defraud a financial institution; 

or 

(2) to obtain any of the moneys, funds, 

credits, assets, securities, or other property 

owned by, or under the custody or control of, 

a financial institution, by means of false or 

fraudulent pretenses, representations, or 

promises; 

shall be fined not more than $1,000,000 or 

imprisoned not more than 30 years, or both. 

18 U.S.C. § 1344. 

The indictment alleged that O'Donnell violated 

subsections (1) and (2) of the Act. Specifically, the indictment 

alleged that he "knowingly executed and attempted to execute a 

scheme and artifice to defraud Countrywide Bank, FSB, a federallyinsured financial institution, and to obtain money . . . and other 

property owned by and under the custody and control of Countrywide 

Bank, FSB, by means of false and fraudulent pretenses, 

representations, and promises, concerning material facts and 

matters in conjunction with a mortgage loan in the amount of 
- 3 - 

$44,000 for property located at 40 Harbor Street, Salem, 

Massachusetts." 

Following indictment, O'Donnell waived his right to a 

jury trial and opted for a bench trial. He also entered into a 

stipulation. The stipulation set forth the following facts 

concerning the scheme alleged in the indictment. 

While serving as a self-employed loan originator 

operating through his loan originator business, AMEX Home Mortgage 

Corporation, O'Donnell completed loan applications and submitted 

them to mortgage companies on behalf of individuals seeking to 

purchase or refinance property. In 2007, O'Donnell sought to 

defraud mortgage lenders in connection with the refinancing of the 

property in Salem, Massachusetts referenced in the indictment. 

The scheme began with O'Donnell's efforts to obtain a 

mortgage loan on a different property, which was owned by a woman 

named L.T. In connection with that transaction, O'Donnell 

submitted a mortgage loan application containing false information 

about L.T. to Homecomings Financial Network, Inc. O'Donnell also 

paid, from a bank account controlled by AMEX, approximately $37,000 

that L.T. was supposed to put down herself to secure the loan for 

that property. 

After O'Donnell was successful in securing the mortgage 

loan in L.T.'s name, O'Donnell then sought to secure a second 

mortgage loan in L.T.'s name, this time for the Salem, 
- 4 - 

Massachusetts property named in the indictment. O'Donnell sought 

this loan in order to obtain the $37,000 that he had put down to 

secure the first loan in L.T.'s name. 

O'Donnell submitted the application for this second loan 

to a different entity from the one to which he had submitted the 

application for the first loan. The stipulation referred to the 

entity to which O'Donnell submitted the second loan application as 

follows: "Countrywide, where Countrywide Home Loans employees 

underwrote and processed the application." 

This second loan application contained many of the same 

false statements that were in O'Donnell's application for the first 

loan in L.T.'s name. O'Donnell also provided fraudulent responses 

to various follow-up inquiries in the course of seeking this second 

loan. When this second loan closed, O'Donnell pocketed most of 

the proceeds. 

The key issue at trial concerned whether O'Donnell's 

fraudulent scheme to secure the second loan targeted Countrywide 

Bank, FSB, as the indictment alleged, or only Countrywide Home 

Loans, as O'Donnell contended. The identification of the intended 

target was crucial because O'Donnell stipulated that Countrywide 

Bank, FSB was a "financial institution" within the meaning of the 

Act, while the government did not dispute that Countrywide Home 

Loans was not. 
- 5 - 

In ruling from the bench at the close of evidence, the 

District Court explained that it had determined that the record 

showed that O'Donnell was "on notice" that Countrywide Bank, FSB 

was "part of this transaction in some form" in the second loan 

transaction. With that finding in place, the District Court then 

found that O'Donnell was guilty of "attempt[ing]" to execute -- 

though not of actually executing -- a scheme or artifice described 

in subsections (1) and (2) both because O'Donnell had intended to 

defraud Countrywide Bank, FSB and because he had intended to obtain 

money and property that was under Countrywide Bank, FSB's custody 

and control. This appeal followed. 

II. 

"We review a bench trial conviction de novo, examining 

the facts and inferences in the light most favorable to the 

verdict." United States v. Ngige, 780 F.3d 497, 503 (1st Cir. 

2015) (citing United States v. Tum, 707 F.3d 68, 69 (1st Cir. 

2013)). The ultimate question is whether "any rational trier of 

fact could have found the essential elements of the crime beyond 

a reasonable doubt." United States v. Grace, 367 F.3d 29, 33 (1st 

Cir. 2004) (quoting United States v. Casas, 356 F.3d 104, 126 (1st 

Cir. 2004)). "[T]his court need not believe that no verdict other 

than a guilty verdict could sensibly be reached, but must only 

satisfy itself that the guilty verdict finds support in a plausible 
- 6 - 

rendition of the record." United States v. Hatch, 434 F.3d 1, 4 

(1st Cir. 2006). 

We start with the Supreme Court's most recent case 

construing the Act, Loughrin v. United States, 134 S. Ct. 2384 

(2014). Loughrin makes clear that subsections (1) and (2) of the 

Act set out two routes to proving criminal liability under the 

statute. See id. at 2389-92. Loughrin also makes clear that proof 

that the defendant violated either subsection is sufficient to 

support a conviction under the Act. Id. Because we conclude that 

the evidence in this case was sufficient to prove a violation under 

subsection (1), we confine our analysis to what the evidence shows 

regarding that portion of the Act.1 See United States v. Gaw, 817 

F.3d 1, 4 (1st Cir. 2016) ("[W]e must affirm each count if the 

evidence is sufficient for the jury to have convicted [the 

defendant] under any one of the relevant theories of liability 

presented to the jury as to that count."). 

Under subsection (1), a defendant who "knowingly 

executes or attempts to execute" a scheme or artifice to defraud 

a "financial institution" violates the Act.2 O'Donnell contends 

 1 Our prior cases did not always distinguish between the two 

subsections of the statute in the way that Loughrin now requires. 

2 In contrast to subsection (1), under subsection (2), 

Loughrin makes clear, the government must show that "the defendant 

intend[ed] 'to obtain any of the moneys . . . or other property 

owned by, or under the custody or control of, a financial 

institution.'" Loughrin, 134 S.Ct. at 2389 (quoting 18 U.S.C. 

§ 1344(2)). Thus, under subsection (2), a defendant may be 
- 7 - 

that because the District Court found him guilty under subsection 

(1) only of "attempt[ing]" to defraud a financial institution 

(rather than of actually "knowingly execut[ing]" such a scheme), 

the government was required to show that O'Donnell specifically 

intended to defraud Countrywide Bank, FSB and that he took a 

substantial step towards doing so. The government does not appear 

to disagree. The government instead simply contends that the 

evidence sufficed to show that O'Donnell did specifically intend 

just that. 

O'Donnell's contrary argument proceeds in the following 

steps. He first argues that, under the "attempt" prong of 

subsection (1), the government had to prove that he specifically 

intended to defraud a "financial institution." He thus contends 

that the government had to prove that he specifically intended to 

defraud Countrywide Bank, FSB, and not simply Countrywide Home 

Loans. After all, the parties agree that only Countrywide Bank, 

FSB is a "financial institution" under the Act. For that reason, 

 

convicted for violating the Act if he used fraudulent means to 

attempt to obtain money or property that he knew was "owned by, or 

under the custody or control of, a financial institution." 

Loughrin, 134 S. Ct. at 2388 (citing 18 U.S.C. § 1344(2)). And, 

a conviction on that basis is proper even if the defendant made no 

"false or fraudulent pretenses, representations, or promises" 

directly to the financial institution. Id. Still, under that 

subsection, the government must show that the "moneys . . . or 

other property" sought by the defendant were "owned by, or under 

the custody or control of, a financial institution," which, in 

this case, would be Countrywide Bank, FSB and not Countrywide Home 

Loans. Id. 
- 8 - 

an attempt to defraud Countrywide Home Loans would not be an 

attempt to defraud a "financial institution" and thus would not be 

a crime under subsection (1). 

O'Donnell then contends that the evidence shows that, at 

most, Countrywide Bank, FSB "may have been involved in some way in 

the transaction." As a result, O'Donnell contends, he cannot have 

been found guilty under subsection (1), because the evidence in 

the record that supports a finding that O'Donnell knew that 

Countrywide Bank, FSB was involved "in some way" is insufficient 

to show that he specifically intended to defraud Countrywide Bank, 

FSB.3 

To support this argument about the insufficiency of the 

evidence, O'Donnell contends that the record reveals what he 

characterizes as only a "perfunctory reference" to Countrywide 

 3 We note that the government expressly argued to the District 

Court that a showing that there was a "risk of loss" to the 

financial institution was required under subsection (1), and it 

appears that the District Court made its finding of guilt under 

subsection (1) on the understanding that a "risk of loss" showing 

was required. O'Donnell does not challenge on appeal, however, 

the "risk of loss" finding that the District Court made. We thus 

treat as waived any argument by O'Donnell regarding the "risk of 

loss" issue. The first time he directly addresses the risk of 

loss issue is in his reply brief, where he merely notes that the 

Supreme Court may "illuminate the scienter requirement" for 

subsection (1) in Shaw v. United States, 781 F.3d 1130 (9th Cir. 

2015), cert. granted, 136 S. Ct. 1711 (2016). In Shaw, the Ninth 

Circuit, post-Loughrin, held that a conviction under subsection 

(1) does not require the government to prove a risk of loss to the 

financial institution. Id. at 1136. Other circuits however, preLoughrin, have reached the opposite conclusion. See, e.g., United 

States v. Staples, 435 F.3d 860, 866 (8th Cir. 2006). 
- 9 - 

Bank, FSB in the papers that he received in connection with his 

application for, and the approval of, the second loan transaction. 

He also notes that most of the loan documents that he saw 

referenced Countrywide Home Loans and not Countrywide Bank, FSB. 

Further, he points out that the documents that he did see and that 

referred to Countrywide Bank, FSB, also contained references to 

Countrywide Home Loans. Thus, he contends that, although the 

evidence shows that he may have specifically intended to defraud 

Countrywide Home Loans, the evidence that he knew of Countrywide 

Bank, FSB's involvement in the transaction is simply too slight to 

show that he specifically intended to defraud Countrywide Bank, 

FSB. 

The first of the documents that O'Donnell received that 

referred to Countrywide Bank, FSB, however, was not just any 

document. It was the loan conditions sheet, which contained the 

loan's terms and the conditions for its approval. And that 

document did not just contain any reference to Countrywide Bank, 

FSB. It made the following statement: "Thank you for submitting 

your loan to Countrywide Bank, FSB.! We sincerely appreciate your 

business." (emphasis added). 

 O'Donnell does not deny receiving this document. In 

fact, the record shows that he responded to the document by 

supplying the specific and detailed information (fabricated though 

it was) that the conditions sheet sought. 
- 10 - 

In addition, O'Donnell received another document that 

referenced Countrywide Bank, FSB. This second document was the 

final loan approval document. This document informed O'Donnell 

that, by submitting the information requested by the conditions 

sheet, he had met the requirements that it had set forth. And 

this second document made the same statement that the conditions 

sheet had made: "Thank you for submitting your loan to Countrywide 

Bank, FSB.! We sincerely appreciate your business." Moreover, the 

record shows that, after receiving this second document, O'Donnell 

received a check made out to his business in consequence of the 

loan application's approval. 

Given the documents that O'Donnell concededly saw in 

carrying out his fraudulent scheme, the nature of their references 

to Countrywide Bank, FSB, and what the record shows about what 

happened after he received each document, the record clearly 

supports a finding that O'Donnell was aware that Countrywide Bank, 

FSB -- and not just Countrywide Home Loans -- was involved in 

approving the loan that O'Donnell was seeking to obtain through 

fraudulent means. 

Moreover, O'Donnell received these documents referencing 

Countrywide Bank, FSB while he was concededly engaged in a 

fraudulent scheme to secure a loan via false statements. And he 

was, by his own account, a sophisticated actor in the loan 

origination business. He thus fairly could have been understood 
- 11 - 

to have been aware, as we observed more than two decades ago, that 

"financial transactions are becoming increasingly integrated and 

complex" and that "the effects of fraudulent actions against one 

institution are increasingly likely to spill over and 

detrimentally affect others." Brandon, 17 F.3d at 427. As a 

result, the documents at issue sufficiently support the reasonable 

inference that, because O'Donnell was "on notice" of Countrywide 

Bank, FSB's involvement in the loan's approval, O'Donnell 

specifically intended to defraud Countrywide Bank, FSB and not 

simply Countrywide Home Loans. See United States v. Munyenyezi, 

781 F.3d 532, 536 (1st Cir. 2015) (explaining that on sufficiency 

review we must "tak[e] the evidence and reasonable inferences in 

the light most helpful to the prosecution"); United States v. 

Ortiz, 966 F.2d 707, 712 (1st Cir. 1992) (explaining that 

"factfinders may draw reasonable inferences from the evidence 

based on shared perceptions and understandings of the habits, 

practices, and inclinations of human beings").4

To be sure, there is no evidence that O'Donnell was aware 

that Countrywide Bank, FSB was a "financial institution." But, 

 4 O'Donnell's contention that the loan at issue in this case 

was not an "integrated transaction," as was true of the loan 

involved in United States v. Edelkind, 467 F.3d 791, 798 (1st Cir. 

2006), is beside the point. Here, the evidence was sufficient to 

support a finding that O'Donnell had the specific intent to defraud 

Countrywide Bank, FSB even if the transaction was not of that 

"integrated" type, and nothing in Edelkind precludes such an 

assessment of this record. 
- 12 - 

there is no dispute that it is. And we have long held that the 

defendant need not have scienter of that necessary fact in order 

to be found guilty under the Act. See United States v. Brandon, 

17 F.3d 409, 425 (1st Cir. 1994) ("The fact that it should turn 

out that the financial institution actually defrauded was 

federally insured is a fortuitous stroke of bad luck for the 

defendants but does not make it any less of a federal crime."). 

Nor does anything in Loughrin hold otherwise, as the Court had no 

occasion to address that question. Thus, to the extent that 

O'Donnell means to contend that Loughrin requires us to depart 

from our precedent on this point, we see no basis for reaching 

such a conclusion. 

O'Donnell next contends that, even if the record 

supports the inference that he specifically intended to defraud 

Countrywide Bank, FSB, the government still had to show that he 

took a "substantial step" towards executing that fraudulent scheme 

in order for him to be convicted of "attempt[ing]" to execute such 

a scheme. But, as we have already pointed out, the record reveals 

that O'Donnell responded to the conditions sheet in which 

Countrywide Bank, FSB thanked him for submitting his loan by 

sending fraudulent information in order to secure the loan. The 

sending of such information in response to that request qualifies 

as a "substantial step" because it is an act "of such a nature 

that a reasonable observer, viewing it in context, could conclude 
- 13 - 

beyond a reasonable doubt that it was undertaken with a design to 

violate the statute." See United States v. Dworken, 855 F.2d 12, 

19-20 (1st Cir. 1988). 

In so concluding, we recognize that the record shows 

that O'Donnell sent his response containing the fabricated 

information to Countrywide Home Loans -- rather than to Countrywide 

Bank, FSB. And we recognize, too, that the papers that O'Donnell 

received in connection with the loan transaction referred to both 

Countrywide Home Loans and to Countrywide Bank, FSB. But, as we 

have explained, the nature of the references in those documents to 

Countrywide Bank, FSB are such that the record adequately supports 

the inference that O'Donnell specifically intended to defraud that 

latter entity and not simply the former one. Thus, the record 

sufficiently supports the finding that, by submitting fraudulent 

information to secure the loan in response to the conditions sheet 

that thanked O'Donnell for submitting his loan to Countrywide Bank, 

FSB, O'Donnell was taking a substantial step in his attempt to 

execute a fraudulent scheme directed at that same entity, even 

though he sent the response itself to Countrywide Home Loans. 

Finally, O'Donnell argues that it was legally impossible 

for him to commit attempted bank fraud if he did not commit the 

completed crime, given that he specifically intended to defraud 

only Countrywide Home Loans and that he was not found guilty of 

doing anything more than attempting to defraud Countrywide Bank, 
- 14 - 

FSB. This contention necessarily rests, however, on the premise 

that the evidence showing O'Donnell's awareness of Countrywide 

Bank, FSB's involvement in the loan transaction is insufficient to 

support the finding that O'Donnell specifically intended to 

defraud Countrywide Bank, FSB. But, as we have explained, that 

premise is mistaken, given the documents thanking O'Donnell for 

submitting his loan to Countrywide Bank, FSB and O'Donnell's 

admitted sophistication in the loan origination business. Thus, 

O'Donnell's legal impossibility argument is without substance. 

III. 

For the foregoing reasons, the conviction is affirmed.